James K. Ceballos v. Carolyn W. Colvin, No. 2:2014cv08183 - Document 20 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See memorandum for details. (hr)
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James K. Ceballos v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAMES K. CEBALLOS, 12 Plaintiff, 13 14 15 v. Case No. CV 14-8183 JC MEMORANDUM OPINION CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. On October 22, 2014, plaintiff James K. Ceballos (“plaintiff”) filed a 19 20 21 22 Complaint seeking review of the Commissioner of Social Security’s denial of plaintiff’s application for benefits. The parties have consented to proceed before the undersigned United States Magistrate Judge. This matter is before the Court on the parties’ cross motions for summary 23 24 25 26 27 28 SUMMARY judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; October 27, 2014 Case Management Order ¶ 5. /// /// 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 (“ALJ”) are supported by substantial evidence and are free from material error. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On October 10, 2007, plaintiff filed an application for Disability Insurance 7 Benefits. (Administrative Record (“AR”) 20, 119). Plaintiff asserted that he 8 became disabled on January 20, 2005, due to a heart condition. (AR 140). The 9 ALJ examined the medical record and heard testimony from plaintiff (who was 10 represented by counsel) and a vocational expert on October 13, 2009 (“Pre11 Remand Hearing”). (AR 29-68, 586-625). On October 19, 2009, the ALJ determined that plaintiff was not disabled 12 13 through June 30, 2008 (i.e., the “date last insured”). (AR 20-28, 545-53). (The 14 October 19, 2009 determination will hereinafter be referred to as the “Pre-Remand 15 Decision”). The Appeals Council denied plaintiff’s application for review of the 16 ALJ’s Pre-Remand Decision. (AR 554). On February 1, 2012, this Court entered judgment reversing and remanding 17 18 the case for further proceedings because it determined that the ALJ erred in 19 assessing the medical opinion evidence. (AR 564-76). The Appeals Council in 20 turn remanded the case for a new hearing. (AR 581-84). On remand, the ALJ held 21 a hearing on August 29, 2012 (“Post-Remand Hearing”), during which the ALJ 22 heard testimony from plaintiff (who was again represented by counsel). (AR 51623 40). 24 On September 28, 2012, the ALJ again determined that plaintiff was not 25 disabled through the date last insured (“Post-Remand Decision”).1 (AR 496-505). 26 27 28 1 The ALJ stated that his discussion in step two regarding plaintiff’s physical and mental impairments, his discussion of the medical evidence, and his credibility analysis regarding (continued...) 2 1 Specifically, the ALJ found that through the date last insured: (1) plaintiff 2 suffered from the following severe impairments: syncope and ventricular 3 tachycardia, dilated cardiomyopathy (alcohol related), status post internal cardiac 4 defibrillator/pacemaker generator placement and subsequent change, hepatitis C, 5 and history of tobacco and polysubstance abuse (AR 499-502); (2) plaintiff’s 6 impairments, considered singly or in combination, did not meet or medically equal 7 a listed impairment (AR 502); (3) plaintiff retained the residual functional capacity 8 to perform light work (20 C.F.R. § 404.1567(b)) with additional limitations2 (AR 9 502-03); (4) plaintiff could perform his past relevant work as a trouble locator/test 10 desk (AR 504); and (5) plaintiff’s allegations regarding the intensity, persistence, 11 and limiting effects of his subjective symptoms were not credible to the extent 12 they were inconsistent with the ALJ’s residual functional capacity assessment (AR 13 26, 504). 14 On August 23, 2014, the Appeals Council deemed the Post-Remand 15 Decision to be “the final decision of the Commissioner of Social Security after 16 remand by the court.” (AR 480). 17 18 (...continued) plaintiff’s physical complaints were incorporated by reference into, and thus supplemented by, 19 the Pre-Remand Decision.). (AR 500, 502-04). 20 21 22 23 24 25 26 27 28 2 The ALJ determined that: (i) plaintiff could exert up to 20 pounds of force occasionally and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects; (ii) “[a] job should be rated as light work when it involves walking or standing to a significant degree or requires sitting most of the time but entails pushing or pulling of arm or leg controls and/or requires working at a production rate pace entailing the constant pushing and pulling of materials even though the weight of those materials is negligible”; (iii) plaintiff could stand and walk up to 6 hours in an 8-hour workday with normal breaks; (iv) plaintiff could perform work that does not require climbing ladders, ropes, scaffolds, and could do no more than occasional climbing of ramps or stairs, stooping, kneeling, crouching, or crawling; (v) plaintiff could perform work that does not involve even moderate exposure to environmental irritants, poorly ventilated areas, and hazardous machinery, unprotected heights, or other high risks, or hazardous or unsafe conditions; and (vi) plaintiff could perform work in a low stress environment, which is defined as work that does not have unusual, very fast pace or production rate requirements. (AR 502-03). 3 1 III. APPLICABLE LEGAL STANDARDS 2 A. 3 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 4 unable “to engage in any substantial gainful activity by reason of any medically 5 determinable physical or mental impairment which can be expected to result in 6 death or which has lasted or can be expected to last for a continuous period of not 7 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 8 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 9 impairment must render the claimant incapable of performing the work the 10 claimant previously performed and incapable of performing any other substantial 11 gainful employment that exists in the national economy. Tackett v. Apfel, 180 12 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 13 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 14 sequential evaluation process: 15 (1) so, the claimant is not disabled. If not, proceed to step two. 16 17 Is the claimant presently engaged in substantial gainful activity? If (2) Is the claimant’s alleged impairment sufficiently severe to limit 18 the claimant’s ability to work? If not, the claimant is not 19 disabled. If so, proceed to step three. 20 (3) Does the claimant’s impairment, or combination of 21 impairments, meet or equal an impairment listed in 20 C.F.R. 22 Part 404, Subpart P, Appendix 1? If so, the claimant is 23 disabled. If not, proceed to step four. 24 (4) Does the claimant possess the residual functional capacity to 25 perform claimant’s past relevant work? If so, the claimant is 26 not disabled. If not, proceed to step five. 27 28 (5) Does the claimant’s residual functional capacity, when considered with the claimant’s age, education, and work 4 1 experience, allow the claimant to adjust to other work that 2 exists in significant numbers in the national economy? If so, 3 the claimant is not disabled. If not, the claimant is disabled. 4 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 5 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 6 1110 (same). 7 The claimant has the burden of proof at steps one through four, and the 8 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 9 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 10 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 11 proving disability). 12 B. 13 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 14 benefits only if it is not supported by substantial evidence or if it is based on legal 15 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 16 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 17 (9th Cir. 1995)). Courts review only the reasons provided in the ALJ’s decision, 18 and the decision may not be affirmed on a ground upon which the ALJ did not 19 rely. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. 20 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 21 Substantial evidence is “such relevant evidence as a reasonable mind might 22 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 23 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but 24 less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 25 911 F.2d 180, 183 (9th Cir. 1990)). To determine whether substantial evidence 26 supports a finding, a court must “‘consider the record as a whole, weighing both 27 evidence that supports and evidence that detracts from the [Commissioner’s] 28 conclusion.’” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 5 1 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can 2 reasonably support either affirming or reversing the ALJ’s conclusion, a court may 3 not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing 4 Flaten, 44 F.3d at 1457). 5 Even when an ALJ’s decision contains error, it must still be affirmed if the 6 error was harmless. Treichler v. Commissioner of Social Security Administration, 7 775 F.3d 1090, 1099 (9th Cir. 2014). An error is harmless if (1) the error was 8 “inconsequential to the ultimate nondisability determination”; or (2) despite the 9 error “the [ALJ’s] path may reasonably be discerned[,]” even if the ALJ’s decision 10 was drafted “with less than ideal clarity[.]” Id. (quoting Alaska Department of 11 Environmental Conservation v. Environmental Protection Agency, 540 U.S. 461, 12 497 (2004)) (internal quotation marks omitted). In either case, an error may not be 13 deemed harmless unless a reviewing court “can confidently conclude that no 14 reasonable ALJ . . . could have reached a different disability determination” absent 15 the alleged error. Marsh v. Colvin, __ F.3d __, 2015 WL 4153858, *2-*3 (9th Cir. 16 July 10, 2015) (citation omitted). 17 A court may not find an ALJ’s error harmless based on “independent 18 findings” gleaned from the record evidence. Brown-Hunter v. Colvin, __ F.3d __, 19 2015 WL 4620123, *4 (9th Cir. Aug. 4, 2015) (citations omitted); see also Marsh, 20 __ F.3d at __, 2015 WL 4153858, at *2 (district court may not use harmless error 21 analysis to affirm decision “on a ground not invoked by the ALJ”) (citing 22 Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194, 196 (1947) 23 (courts must judge propriety of administrative agency decision “solely by the 24 grounds invoked by the agency”)). Where harmlessness is unclear, and there is a 25 “substantial likelihood” that the ALJ’s error was prejudicial, the court may remand 26 the case to permit the ALJ to determine “whether re-consideration is necessary.” 27 Marsh, __ F.3d at __, 2015 WL 4153858, at *2-*3 (citing McLeod v. Astrue, 640 28 F.3d 881, 888 (9th Cir. 2011)) (internal quotation marks omitted). Remand is not 6 1 appropriate, however, “where harmlessness is clear and not a borderline 2 question[.]” Id. 3 IV. DISCUSSION 4 A. The ALJ Properly Evaluated the Opinions of Plaintiff’s Treating 5 Physician 6 1. 7 Pertinent Facts In January 2005 Dr. Naheed Olsen implanted an implantable cardioverter 8 defibrillator (“ICD”) device into plaintiff to address an abnormal heart beat, and 9 replaced the ICD generator in June of 2008. (AR 224-25, 320, 333). 10 In a December 5, 2008 Cardiac Impairment Questionnaire check-box form 11 (“December Form”), plaintiff’s treating cardiologist, Dr. Anh Duong, diagnosed 12 plaintiff with Class 3 heart failure under the New York Heart Association clinical 13 classifications (“NYHA”),3 checked off “positive clinical findings” for plaintiff of 14 “shortness of breath,” “fatigue,” “weakness,” and “palpitations,” noted primary 15 symptoms of “shortness of breath,” and noted that echocardiogram results showing 16 ejection fraction of 25-30%4 supported the diagnosis. (AR 357-58). Dr. Duong 17 opined that plaintiff (i) could sit for eight hours, and stand/walk for two hours in 18 an eight-hour work day; (ii) could lift or carry up to 10 pounds occasionally; 19 (iii) would likely be absent from work about once a month due to his impairments; 20 21 22 23 24 25 26 3 “[NYHA] clinical classifications of heart failure [] rank patients as class I-II-III-IV, according to the degree of symptoms or functional limits.” Heart Failure Overview, WebMD website available at http://www.webmd.com/heart-disease/heart-failure/ heart-failure- overview? page=2#1. NYHA Class III heart failure involves “Marked limitation of physical activity. Comfortable at rest. Less than ordinary activity causes fatigue, palpitation, or dyspnea.” See Classes of Heart Failure, American Heart Association website available at http://www.heart.org/ HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes-of-Heart-Failure_UCM_3063 28_Article.jsp. 4 “The ejection fraction is a measurement of the heart’s efficiency and can be used to 27 estimate the function of the left ventricle, which pumps blood to the rest of the body. . . . [¶] A 28 normal ejection fraction is more than 55% of the blood volume.” Ejection Fraction, WebMD Web Site, available at http://www.webmd.com/hw-popup/ejection-fraction. 7 1 (iv) had “depression” which contributed to the severity of his symptoms and 2 functional limitations; (v) would “periodically” experience “pain, fatigue and other 3 symptoms (including psychological preoccupation with his[] cardiac condition, if 4 any) severe enough to interfere with attention and concentration”; and (vi) could 5 tolerate “low stress” work. (AR 359-61). Dr. Duong also identified (using check 6 marks) “other limitations that would affect [plaintiff’s] ability to work at a regular 7 job on a sustained basis,” specifically “psychological limitations”; the need to 8 avoid fumes, gasses, temperature extremes, dust, and heights; and “no” pushing, 9 pulling, kneeling, bending, or stooping. (AR 361). Dr. Duong identified 2005 as 10 the “earliest date” to which “the description of symptoms and limitations in [the] 11 questionnaire applie[d].” (AR 361). 12 13 2. Pertinent Law In Social Security cases, courts give varying degrees of deference to 14 medical opinions depending on the type of physician who provided them, namely 15 “treating physicians,” “examining physicians,” and “nonexamining physicians.” 16 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citation and quotation 17 marks omitted). A treating physician’s opinion is generally given the most weight, 18 and may be “controlling” if it is “well-supported by medically acceptable clinical 19 and laboratory diagnostic techniques and is not inconsistent with the other 20 substantial evidence in [the claimant’s] case record[.]” 20 C.F.R. 21 § 404.1527(c)(2); Orn, 495 F.3d at 631 (citations and quotation marks omitted). 22 An examining, but non-treating physician’s opinion is entitled to less weight than 23 a treating physician’s, but more weight than a nonexamining physician’s opinion. 24 Garrison, 759 F.3d at 1012 (citation omitted). 25 An ALJ may reject the uncontroverted opinion of a treating or examining 26 physician by providing “clear and convincing reasons that are supported by 27 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) 28 (citation omitted). Where a treating or examining physician’s opinion is 8 1 contradicted by another doctor’s opinion, an ALJ may reject the treating/ 2 examining opinion only “by providing specific and legitimate reasons that are 3 supported by substantial evidence.” Garrison, 759 F.3d at 1012 (citation and 4 footnote omitted). 5 An ALJ may provide “substantial evidence” for rejecting a medical opinion 6 by “setting out a detailed and thorough summary of the facts and conflicting 7 clinical evidence, stating his [or her] interpretation thereof, and making findings.” 8 Garrison, 759 F.3d at 1012 (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th 9 Cir. 1998)) (quotation marks omitted); Thomas v. Barnhart, 278 F.3d 947, 957 10 (9th Cir. 2002) (same) (citations omitted); see also Magallanes v. Bowen, 881 F.2d 11 747, 751, 755 (9th Cir. 1989) (ALJ need not recite “magic words” to reject a 12 treating physician opinion – court may draw specific and legitimate inferences 13 from ALJ’s opinion). An ALJ “must do more than offer [] conclusions.” Embrey 14 v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988); McAllister v. Sullivan, 888 F.2d 15 599, 602 (9th Cir. 1989) (“broad and vague” reasons for rejecting treating 16 physician’s opinion insufficient) (citation omitted). “[The ALJ] must set forth his 17 [or her] own interpretations and explain why they, rather than the [physician’s], 18 are correct.” Embrey, 849 F.2d at 421-22. 19 20 3. Analysis Here, plaintiff essentially contends that the ALJ improperly rejected Dr. 21 Duong’s Opinions regarding plaintiff’s cardiac impairment and related physical 22 limitations. (Plaintiff’s Motion at 17-19). The Court disagrees. 23 First, the ALJ properly rejected such opinions because they were not 24 supported by Dr. Duong’s own treatment notes or the record as a whole. See 25 Bayliss, 427 F.3d at 1217 (“The ALJ need not accept the opinion of any physician, 26 including a treating physician, if that opinion is brief, conclusory, and 27 inadequately supported by clinical findings.”) (citation and internal quotation 28 marks omitted); Connett, 340 F.3d at 875 (treating physician’s opinion properly 9 1 rejected where treating physician’s treatment notes “provide no basis for the 2 functional restrictions he opined should be imposed on [the claimant]”). For 3 example, as the ALJ noted, in the December Form Dr. Duong noted positive 4 clinical findings for plaintiff of “shortness of breath, fatigue, weakness, and 5 palpitations.” (AR 26, 357). The minimal treatment records from Dr. Duong 6 himself, however, reflect that on February 18, 2008 plaintiff did not report 7 symptoms of palpitations, weakness, or orthopnea (i.e., shortness of breath while 8 lying down), and on examination plaintiff had normal heart rate and regular 9 rhythm. (AR 325). On May 28, 2008, plaintiff again reported no palpitations, 10 weakness, or orthopnea, and had dyspnea (shortness of breath) only “after [a] 1 11 mile walk.” (AR 336). As the ALJ also noted, during June 2008 examinations 12 following the ICD implantation, plaintiff told Dr. Olsen that he had “no shortness 13 of breath, dizziness, [or] palpitations,” and said “[h]e is able to walk 1 mile 14 without difficulty.” (AR 25, 229, 232). 15 Second, as the ALJ also noted, contrary to Dr. Duong’s designation of 16 plaintiff’s heart failure in February and May 2008 as NYHA Class 2, and progress 17 notes from May and June of that same year which reflected that plaintiff could 18 walk without difficulty for up to 1 mile (AR 325-26, 334, 336-37), in October 19 2008 Dr. Duong classified plaintiff as NYHA Class 3 (apparently based on 20 plaintiff’s assertion that he was only able to walk for two blocks without resting), 21 despite finding that plaintiff’s heart condition was “stable and well-controlled” 22 and despite the lack of other medical evidence to support a “sudden decline in 23 [plaintiff’s] ability to walk” between May and October 2008. (AR 349-51, 357); 24 see Carter v. Astrue, 472 Fed. Appx. 550, 551-52 (9th Cir. 2012) (“[A] 25 discrepancy between a doctor’s opinion and his other records constitutes a ‘clear 26 and convincing reason for not relying on the doctor’s opinion.’”) (citing Bayliss, 27 427 F.3d at 1216). While plaintiff suggests that the medical evidence actually 28 supports Dr. Duong’s Opinions (Plaintiff’s Motion at 17-19), this Court will not 10 1 second-guess the ALJ’s reasonable determination to the contrary, even if such 2 evidence could give rise to inferences more favorable to plaintiff. See Robbins, 3 466 F.3d at 882 (citation omitted). Finally, even assuming, for the sake of argument, that the ALJ improperly 4 5 rejected Dr. Duong’s Opinions, any error would have been harmless since the 6 vocational expert essentially testified at the Pre-Remand Hearing that plaintiff (or 7 a hypothetical individual with the same characteristics as plaintiff ) would still be 8 able to perform plaintiff’s past relevant work as a “trouble locator/test desk,” even 9 with the physical limitations to which Dr. Duong opined. (AR 505) (citing AR 6210 63). 11 Accordingly, a remand or reversal on this basis is not warranted. 12 B. 13 The ALJ Properly Evaluated the Severity of Plaintiff’s Impairments Plaintiff contends that a reversal or remand is warranted because the ALJ 14 15 found no severe mental impairment at step two of the sequential evaluation 16 process. (Plaintiff’s Motion at 19-22). The Court disagrees. 17 1. Pertinent Law At step two, a claimant must present evidence of “signs, symptoms, and 18 19 laboratory findings”5 which establish a medically determinable physical or mental 20 impairment that is severe and, at least, has lasted or can be expected to last for a 21 continuous period of at least twelve months. Ukolov v. Barnhart, 420 F.3d 1002, 22 1004-05 (9th Cir. 2005) (citing 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D)); see 23 20 C.F.R. §§ 404.1508, 404.1509, 404.1520(a)(4)(ii). 24 /// 25 26 5 Medical “[s]igns are anatomical, physiological, or psychological abnormalities which 27 can be . . . shown by medically acceptable clinical diagnostic techniques.” 20 C.F.R. 28 § 404.1528(b). “Symptoms” are an individual’s own perception or description of the impact of a physical or mental impairment. 20 C.F.R. § 404.1528(a). 11 1 Step two is “a de minimis screening device [used] to dispose of groundless 2 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An impairment is 3 “not severe” only if the evidence establishes a “slight abnormality” that has “no 4 more than a minimal effect” on a claimant’s “physical or mental ability to do basic 5 work activities.” 20 C.F.R. § 404.1521(a); Webb v. Barnhart, 433 F.3d 683, 686 6 (9th Cir. 2005) (citations and internal quotation marks omitted). 7 When reviewing an ALJ’s findings at step two, the district court “must 8 determine whether the ALJ had substantial evidence to find that the medical 9 evidence clearly established that [the claimant] did not have a medically severe 10 impairment or combination of impairments.” Id. at 687 (citing Yuckert v. Bowen, 11 841 F.2d 303, 306 (9th Cir. 1988) (“Despite the deference usually accorded to the 12 Secretary’s application of regulations, numerous appellate courts have imposed a 13 narrow construction upon the severity regulation applied here.”)). 14 15 2. Analysis First, substantial evidence in the medical record clearly supports the ALJ’s 16 determination at step two that plaintiff did not have a severe mental impairment. 17 In determining whether or not a plaintiff’s mental impairment is severe, ALJs are 18 required to evaluate the degree of mental limitation in the following four areas: 19 (1) activities of daily living; (2) social functioning; (3) concentration, persistence, 20 or pace; and (4) episodes of decompensation. If the degree of limitation in these 21 four areas is determined to be “mild,” a plaintiff’s mental impairment is generally 22 not severe, unless there is evidence indicating a more than minimal limitation in 23 his ability to perform basic work activities.6 See 20 C.F.R. § 404.1520a(c)-(d). 24 Here, the ALJ found no limitations in plaintiff’s activities of daily living, only 25 mild limitations in plaintiff’s social functioning, concentration, persistence, and 26 27 28 6 Basic work activities include: (1) understanding, carrying out, and remembering simple instructions; (2) responding appropriately to supervision, co-workers and usual work situations; and (3) dealing with changes in a routine work setting. See 20 C.F.R. § 404.1521. 12 1 pace, and no episodes of decompensation of extended duration. (AR 23, 500, 2 504). As discussed below, the ALJ reasonably found that the record medical 3 evidence did not reflect any more significant mental limitations. To the extent 4 plaintiff suggests that other medical records demonstrate that his mental 5 impairments have more than a minimal effect on his ability to work (Plaintiff’s 6 Motion at 21), this Court will not second-guess the ALJ’s reasonable 7 determination to the contrary. 8 Dr. Duong’s opinions regarding plaintiff’s mental condition do not undercut 9 the ALJ’s findings at step two. In the December Form, Dr. Duong checked “yes” 10 when asked if “emotional or psychological factors contribute to the severity of 11 [plaintiff’s] symptoms and functional limitations” and simply wrote “depression” 12 when asked to “explain” his response. (AR 360). Dr. Duong also checked off on 13 the form that “psychological limitations” affected plaintiff’s ability to work. (AR 14 361). As the ALJ noted, Dr. Duong did not explain his check-box opinions, nor 15 did the December Form document any specific clinical findings or objective 16 medical evidence in support thereof. (AR 360-61, 500). In addition, apart from 17 cursory notes that plaintiff was prescribed Fluoxetine (originally “if needed for 18 stress”) (AR 160 230, 233, 244, 283, 303, 307, 312, 324, 326, 328-30, 335, 337, 19 340, 343-44, 350, 352, 393, 420, 450), and plaintiff’s testimony that he attended 20 an anxiety therapy group for twelve weeks (AR 59), as the ALJ noted, the record 21 contains little evidence of “significant objective findings and related mental 22 treatment records” to support any psychological abnormality that has more than a 23 minimal effect on plaintiff’s mental abilities. (AR 501). The ALJ properly 24 rejected Dr. Duong’s opinions regarding plaintiff’s mental condition on these 25 grounds. See Bayliss, 427 F.3d at 1217; see, e.g., Crane v. Shalala, 76 F.3d 251, 26 253 (9th Cir. 1996) (“ALJ [] permissibly rejected [medical evaluations] because 27 they were check-off reports that did not contain any explanation of the bases of 28 their conclusions.”); De Guzman v. Astrue, 343 Fed. Appx. 201, 209 (9th Cir. 13 1 2009) (ALJ “is free to reject ‘check-off reports that d[o] not contain any 2 explanation of the bases of their conclusions.’”) (citing id.); see also Murray v. 3 Heckler, 722 F.2d 499, 501 (9th Cir. 1983) (expressing preference for 4 individualized medical opinions over check-off reports). 5 The ALJ did not, as plaintiff argues (Plaintiff’s Motion at 21), fail 6 adequately to develop the record pertaining to plaintiff’s mental functioning. 7 Although a claimant bears the burden of proving disability, the ALJ has an 8 affirmative duty to assist the claimant in developing the record “when there is 9 ambiguous evidence or when the record is inadequate to allow for proper 10 evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 11 2001) (citation omitted); Bustamante, 262 F.3d at 954; see also Webb, 433 F.3d at 12 687 (ALJ has special duty fully and fairly to develop record and to assure that 13 claimant’s interests are considered). Where it is necessary to enable the ALJ to 14 resolve an issue of disability, the duty to develop the record may require 15 consulting a medical expert or ordering a consultative examination. See 20 C.F.R. 16 § 404.1519a. 17 Here, the ALJ was not, as plaintiff contends, required to re-contact Dr. 18 Duong to obtain clarification for the check-off opinions regarding plaintiff’s 19 mental condition. See De Guzman, 343 Fed. Appx. at 209 (ALJ has no obligation 20 to recontact physician to determine the basis for opinions expressed in “check-off 21 reports that d[o] not contain any explanation of the bases of their conclusions.”) 22 (citation and internal quotation marks omitted). In addition, it was reasonable for 23 the ALJ to deny plaintiff’s request for a consultative psychological examination in 24 October 2009 based on the ALJ’s determination that such an examination would 25 not have produced evidence that was material to plaintiff’s mental condition 26 during the relevant period (i.e., on or before June 30, 2008). (AR 501); see Breen 27 v. Callahan, 1998 WL 272998, at *3 (N.D. Cal. May 22, 1998) (noting that, in the 28 Ninth Circuit, the ALJ’s obligation to develop the record is triggered by “the 14 1 presence of some objective evidence in the record suggesting the existence of a 2 condition which could have a material impact on the disability decision”) (citing 3 Smolen, 80 F.3d at 1288; Wainwright v. Secretary of Health and Human Services, 4 939 F.2d 680, 682 (9th Cir. 1991)); see also Johnson v. Astrue, 2010 WL 5 2102828, *2 (E.D. Cal. May 24, 2010) (“Ordering a consultative examination 6 ordinarily is discretionary . . . and is required only when necessary to resolve the 7 disability issue.”). 8 In addition, the ALJ did not, as plaintiff asserts (Plaintiff’s Motion at 22) 9 “completely ignor[e]” the opinions expressed by Dr. Ryu in a mental assessment 10 letter dated August 20, 2012. The ALJ simply found that the assessment 11 “offer[ed] no reliable evidence of [plaintiff’s] mental state on or prior to June 30, 12 2008, which would support the presence of ‘severe’ mental impairments” since 13 such evidence “post-date[d] the date last insured.” (AR 502) (citing AR 1341-43). 14 The ALJ’s conclusion is supported by substantial evidence. In short, Dr. Ryu’s 15 assessment almost exclusively addressed plaintiff’s mental condition at the time 16 the assessment was conducted, which was many years after plaintiff’s date last 17 insured. (AR 1343). In addition, the ALJ was entitled to disregard Dr. Ryu’s 18 conclusory opinion that plaintiff “became disabled in December 2002. . . .” (AR 19 1343); see Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (ALJ must 20 provide explanation only when rejecting “significant probative evidence”) 21 (citation omitted). A physician’s statement that a claimant is “disabled” or 22 “unable to work” is a non-medical opinion that is not binding on the 23 Commissioner. See 20 C.F.R. § 404.1527(d)(1) (“We are responsible for making 24 the determination or decision about whether you meet the statutory definition of 25 disability. . . . A statement by a medical source that you are ‘disabled’ or ‘unable 26 to work’ does not mean that we will determine that you are disabled.”); Boardman 27 v. Astrue, 286 Fed. Appx. 397, 399 (9th Cir. 2008) (“[The] determination of a 28 /// 15 1 claimant’s ultimate disability is reserved to the Commissioner . . . a physician’s 2 opinion on the matter is not entitled to special significance.”). 3 Accordingly, a remand or reversal is not warranted on this basis. 4 C. 5 Plaintiff contends that a remand or reversal is warranted because the ALJ The ALJ Properly Evaluated Plaintiff’s Credibility 6 inadequately evaluated the credibility of his subjective complaints. (Plaintiff’s 7 Motion at 22-25). The Court disagrees. 8 9 1. Pertinent Law When a claimant provides “objective medical evidence of an underlying 10 impairment which might reasonably produce the pain or other symptoms alleged,” 11 and there has not been an affirmative finding that the claimant was malingering, 12 the ALJ may discount the credibility of the claimant’s statements regarding 13 subjective symptoms only by “offering specific, clear and convincing reasons for 14 doing so” supported by substantial evidence. Brown-Hunter, 2015 WL 4620123, 15 at *5 (citation and internal quotation marks omitted). This requirement is very 16 difficult to meet. See Garrison, 759 F.3d at 1015 (“The clear and convincing 17 standard is the most demanding required in Social Security cases.”) (citation and 18 internal quotation marks omitted). An ALJ must identify the specific testimony 19 that lacks credibility, provide “clear and convincing reasons” why the testimony is 20 not credible, and identify the specific evidence in the record which supports the 21 ALJ’s determination. Brown-Hunter, 2015 WL 4620123, at *1, *6 (finding legal 22 error where ALJ failed to identify testimony she found not credible and failed “[to] 23 link that testimony to the particular parts of the record supporting her 24 non-credibility determination”). 25 To find a claimant not credible, an ALJ must rely either on reasons 26 unrelated to the subjective testimony (e.g., reputation for dishonesty), internal 27 contradictions in the claimant’s statements and testimony, or conflicts between the 28 claimant’s testimony and the claimant’s conduct (e.g., daily activities, work 16 1 record, unexplained or inadequately explained failure to seek treatment or to 2 follow prescribed course of treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d 3 at 883; Burch, 400 F.3d at 680-81; Social Security Ruling 96-7p. 4 If the ALJ’s interpretation of the claimant’s testimony is reasonable and is 5 supported by substantial evidence, it is not the court’s role to “second-guess” it. 6 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citation omitted); see also 7 Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (Evaluation of a claimant’s 8 credibility and resolution of conflicts in the testimony are solely functions of the 9 Commissioner.) (citation omitted). 10 11 2. Analysis First, as discussed above, the ALJ reasonably concluded that through the 12 date last insured, there was no evidence that plaintiff had a severe mental 13 impairment. (AR 504). Thus it was reasonable for the ALJ to conclude that 14 plaintiff’s subjective complaints about his psychiatric condition were 15 “unsubstantiated.” (AR 504); see, e.g., Vasquez v. Astrue, 572 F.3d 586, 591 (9th 16 Cir. 2009) (ALJ need not evaluate credibility of subjective complaints absent 17 evidence of an impairment that could reasonably be expected to cause the 18 subjective symptoms alleged) (citations omitted). 19 Second, the ALJ properly discredited plaintiff’s subjective complaints of 20 physical limitations due to internal conflicts within plaintiff’s own statements and 21 testimony. See Light v. Social Security Administration, 119 F.3d 789, 792 (9th 22 Cir.), as amended (1997) (in weighing plaintiff’s credibility, ALJ may consider 23 “inconsistencies either in [plaintiff’s] testimony or between his testimony and his 24 conduct”); see also Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 1989) (ALJ can 25 reject pain testimony based on contradictions in plaintiff’s testimony). For 26 example, the ALJ reasonably determined that plaintiff’s statement that he stopped 27 working due to his heart condition (AR 140) was inconsistent with plaintiff’s 28 testimony which suggested that plaintiff had left his job “because of what he 17 1 considered unreasonable demands of the workplace,” not due to any physical 2 disability. (AR 26; AR 40, 50-53, 522-525). Indeed, plaintiff testified at the post3 remand hearing that he “retired in 2002,” but did not start “having [] heart trouble 4 [until] January 2005” (i.e., plaintiff’s alleged onset date). (AR 20, 526). While 5 plaintiff argues that the record actually reflects that he stopped working “because 6 of his medical conditions” (Plaintiff’s Motion at 24), this Court will not second7 guess the ALJ’s reasonable determination to the contrary, even if such evidence 8 could give rise to inferences more favorable to plaintiff. See Robbins, 466 F.3d at 9 882 (citation omitted). 10 Third, the ALJ properly discounted plaintiff’s credibility because the 11 alleged severity of plaintiff’s physical symptoms was inconsistent with plaintiff’s 12 daily activities. See Thomas, 278 F.3d at 958-59 (inconsistency between the 13 claimant’s testimony and the claimant’s conduct supported rejection of the 14 claimant’s credibility); see also Burch, 400 F.3d at 681 (ALJ may consider 15 claimant’s “daily living activities” when assessing credibility). For example, as 16 the ALJ noted, contrary to plaintiff’s testimony that he has limited stamina and 17 needs to rest after walking for only two to three blocks (AR 45), plaintiff testified 18 that he did “a lot of housework,” he took care of “the mopping and the laundry[,] 19 the dishes” and cooking, and although the housework would take him “all day,” 20 plaintiff was “still [able to] do it.” (AR 46-48, 53-54). Plaintiff also testified that 21 he plays nine holes of golf every two weeks with a friend, and can do so with only 22 one 15 minute break at the sixth hole so plaintiff could “drink water and get [his] 23 second breath.” (AR 47, 53). 24 While plaintiff correctly suggests that a claimant “does not need to be 25 ‘utterly incapacitated’ in order to be disabled,” Vertigan v. Halter, 260 F.3d 1044, 26 1050 (9th Cir. 2001) (citation omitted), this does not mean that an ALJ must find 27 that a claimant’s daily activities demonstrate an ability to engage in full-time work 28 (i.e., eight hours a day, five days a week) in order to discount the credibility of 18 1 conflicting subjective symptom testimony. See Molina, 674 F.3d at 1113 (“[An] 2 ALJ may discredit a claimant’s testimony when the claimant reports participation 3 in everyday activities indicating capacities that are transferable to a work setting 4 . . . [e]ven where those activities suggest some difficulty functioning. . . .”) 5 (citations omitted). Here, even though plaintiff stated that he had difficulty 6 functioning, the ALJ properly discounted the credibility of plaintiff’s alleged 7 physical symptoms to the extent plaintiff’s daily activities were inconsistent with a 8 “totally debilitating impairment.” Id. While plaintiff suggests that plaintiff’s 9 activities of daily living are not inconsistent with his subjective complaints 10 (Plaintiff’s Motion at 24-25), the Court will not second-guess the ALJ’s 11 reasonable determination to the contrary. 12 Finally, the ALJ properly discounted plaintiff’s credibility due, in part, to 13 the absence of supporting objective medical evidence. See Burch, 400 F.3d at 14 681; Rollins, 261 F.3d at 857 (“While subjective pain testimony cannot be rejected 15 on the sole ground that it is not fully corroborated by objective medical evidence, 16 the medical evidence is still a relevant factor in determining the severity of the 17 claimant’s pain and its disabling effects.”) (citation omitted). For example, as the 18 ALJ noted, the medical evidence reflects, among other things, that leading up to 19 plaintiff’s date last insured, plaintiff’s congestive heart failure was noted as “stable 20 and well-controlled,” plaintiff displayed no significant symptoms related to his 21 heart condition, plaintiff said he could “walk one mile without difficulty,” and 22 plaintiff’s cardiovascular exams showed normal heart rate, regular rhythm, normal 23 heart sounds, and no gallops, and plaintiff’s heart failure was designated as a less 24 /// 25 /// 26 /// 27 /// 28 /// 19 1 severe NYHA Class 1 or 2.7 (AR 335-37, 340-41); cf., e.g., Warre v. 2 Commissioner of Social Security Administration, 439 F.3d 1001, 1006 (9th Cir. 3 2006) (“Impairments that can be controlled effectively with medication are not 4 disabling for the purpose of determining eligibility for SSI benefits.”) (citations 5 omitted). 6 Accordingly, a remand or reversal is not warranted on this basis. 7 V. CONCLUSION 8 For the foregoing reasons, the decision of the Commissioner of Social 9 Security is affirmed. 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 DATED: August 18, 2015 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 NYHA Class II heart failure involves “Slight limitation of physical activity. Comfortable at rest. Ordinary physical activity results in fatigue, palpitation, dyspnea (shortness of breath).” See American Heart Association website available at http://www.heart.org/ HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes-of-Heart-Failure_UCM_3063 28_Article.jsp. 20
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